Pennsylvania, congressional districts
Photo credit: DonkeyHotey / WhoWhatWhy (CC BY-SA 2.0) See complete attribution below.

Not all heroes wear capes. Among the ones who don’t is Nathaniel Persily, a man few Americans have ever heard of. By day, he teaches at Stanford Law School. At night, he is saving the battered US democracy.

Persily is a court-appointed expert who has been tasked with redrawing gerrymandered maps — most recently in Pennsylvania. The Keystone State is a perfect example of why Persily’s expertise is desperately needed.

After Republicans won both chambers of the state legislature and the governor’s mansion in 2010, they immediately began to cement their new majorities.

In 2011, they revealed a new congressional map that is widely viewed as one of the most gerrymandered in the US. It doesn’t take an expert like Persily to see why. It featured oddly shaped congressional districts, some with narrow corridors and jagged boundaries that split many different counties.

For the purpose of allowing Pennsylvanians to be represented fairly in elections, it was an abomination. For the purpose of allowing Republicans to send a disproportionate number of representatives to Washington, it was perfect.

In 2012, Democratic candidates for the US House of Representatives won 2.79 million votes in Pennsylvania and five congressional districts. GOP candidates won 2.71 million votes and 13 congressional districts — and they have held onto that advantage ever since.

What the Republicans had done is to “pack” minority populations into a small number of districts, like those representing Philadelphia and Pittsburgh, that would vote for a Democrat by an overwhelming majority while giving their own candidates an advantage in all of the state’s other districts. As a result, they achieved a lopsided victory, despite the popular vote being evenly split between the two parties.

Because the wheels of justice turn slowly, it took more than five years for Pennsylvania’s Supreme Court to declare the map unconstitutional. The court gave state Republicans one more chance to draw a fair map, specifying features it should entail.

“To comply with this order, any Congressional districting plan shall consist of: congressional districts composed of compact and contiguous territory; as nearly equal in population as practicable; and which do not divide any county, city, incorporated town, borough, township, or ward, except where necessary to ensure equality of population,” the court ruled.

Republicans failed to meet the court’s standard.

As a result, Persily was assigned to create a map that would more fairly represent Pennsylvanians in Congress. He did, and complied with the court’s wishes on how such a map should be drawn.

Persily uses census data and mapping software, and in this case the court’s direction, to come up with a fairer map. Describing his work, he said that the challenge is “trying to balance the myriad factors required by the law, politics, demography, and geography for a jurisdiction.”

In the case of Pennsylvania’s new map, the media calls it a win for Democrats, who will likely send more than five representatives to Congress after the midterm election. It might even swing the pendulum a bit too much in their favor. But it is certainly not blatantly partisan — and seeing this result in purely partisan terms is to miss the point.

It’s a win for democracy.

Of course, it is possible that one party wins the popular vote in a tightly contested state but ends up not getting more delegates. However, when winning 50.3% of the popular vote nets a party less than 30% of a state’s congressional seats, that’s prima facie a case of electoral fraud.

In Pennsylvania, Republicans are fighting fiercely to protect their ill-gotten gains. They refused to comply with the decision, unsuccessfully appealed to the Supreme Court, challenged it again in federal court, and even floated the idea of impeaching the judges who handed down the decision. In other words, now that somebody finally put an end to an injustice perpetrated against Pennsylvania’s voters, they seem willing to go to extreme lengths to prevent that from happening.

While this case and other recent ones, for example in North Carolina, involved Republicans clinging to power, this is a bipartisan problem. Meaning neither party is likely to fix it.

The Supreme Court will get a chance to rectify this problem later this year, when it rules on whether Wisconsin’s politically gerrymandered map is unconstitutional. However, the court has sadly been on the wrong side of democracy in recent landmark cases, such as Citizens United, which opened the spigots for more money in politics, and Shelby County v. Holder, which gutted the Voting Rights Act.

If the court fails to stop political gerrymanders, one can hope that American voters will take the matter into their own hands. Whether through popular referendums or electing representatives committed to change, the way to ensure fair election results is to empower people like Persily to draw maps that fairly represent the voting public.

The cartoon above was created by DonkeyHotey for WhoWhatWhy from these images: Pennsylvania map (PA Supreme Court), US map (AMK1211 / Wikimedia – CC BY-SA 3.0), elephant (Aidan Jones / Flickr – CC BY-SA 2.0), and field (Stephen Goodwin / Wikimedia – CC BY-SA 4.0).


  • Klaus Marre is a writer, editor, and former congressional reporter. Follow him on Twitter @KlausMarre. DonkeyHotey creates caricatures and cartoons used by many writers and websites to illustrate news articles and opinion pieces. His current work is a combination of caricature, photo collage, and photo manipulation. Follow him on Twitter @DonkeyHotey.

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Pack ’em and Crack ’em!

The problem is converting votes to seats fairly and up until now, there hasn’t been a way to measure this conversion rate and to apply it as a legal standard that the SCOTUS could accept.

But when the court hands down its decision in Gill later this year, all of that may change.

One argument that the court has shown it will consider as constitutional, is the concept of partisan symmetry, which holds that district maps should treat parties equally.

Partisan symmetry does not impose identically equaly shares of voters and seats to each party. Importantly, partisan symmetry is not about proportionality.

The idea is to simply make sure that the popular vote translates into actual seats; in other words, if your party did not win the popular vote but won more districts, that is a gerrymandering problem which partisan symmetry can solve.

The SCOTUS had stated that there are no justiciable means to remedy gerrymandering; in effect throwing its hands up an giving up on the problem as “part of politics”.

This was the case until 2006 in Perry where Kennedy stated in his opinion that partisan symmetry is one measure that the SCOTUS would look on positively.

By measuring the Efficiency Gap, that is the difference between the overall number of votes “wasted” from each party we can measure the rate at which votes turn into actual seats and whether that is fair.

Partisan symmetry or a zero efficiency gap in voting districts would mean that both parties have the same number of wasted votes (lost and surplus votes are considered wasted).

Daniel LaLiberte

There is an easy solution to gerrymandering: obsolete it by changing the voting system to approval voting. The winners in approval voting will tend to be moderates who get the highest approval of all voters, regardless of party.

We also need proportional representation of all viewpoints, regardless of party, but for single winner elections we should be striving to represent as many voters as possible, not merely a majority, and approval voting will encourage that.


I’m not sure what “approval voting” is but I think you mean winner take-all single district open primaries like in California where all the candidates from all parties are listed on 1 ballot and only the top 2 are in the primary election – regardless of party preference; so you will have all democrats or all republicans, as has happened.

I’m not a member of the GOP but I think that is an unfair system put in place by the dominating party. I think opening primaries to “no party preference” voters (a real category) is still gerrymandering, because you know that the underlying demographics favor your particular party.

The US Supreme Court has repeatedly rejected any Constitutional mandate of “proportionality” because individuals who vote are not distributed uniformly across districts as drawn by legislators, which favor one group of voters over another; and no amount of repeated elections is likely to bear out statewide preferences of voters in such a proportional system.

Partisan symmetry remedies the failed proportionality standard with a simple method to measure the conversion rates of votes to seats and whether that is fair; it does not allocate votes or seats based on some proportion of the voting population.

The efficiency gap simply points out that if a party gets 30% of the popular vote but wins the majority of seats, that is a prima facie example of gerrymandering and it can be solved though partisan symmetry.